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04/25/88 Michael Dvorak, v. Primus Corporation Et Al.

April 25, 1988

MICHAEL DVORAK, PLAINTIFF-APPELLANT

v.

PRIMUS CORPORATION ET AL., DEFENDANTS-APPELLEES (DON L. DISE, INC., ET AL., DEFENDANTS)

PLAINTIFF APPEALS FROM ORDERS OF THE CIRCUIT COURT OF KANE COUNTY ENTERING SUMMARY JUDGMENT FOR DEFENDANTS ON HIS STRUCTURAL WORK ACT CLAIMS (ACT) (ILL. RE

v.

STAT. 1985, CH. 48, PAR. 60 ET SEQ.) AND DISMISSING HIS NEGLIGENCE CLAIM WITH PREJUDICE.

SECTION 9 OF THE ACT AFFORDS A CAUSE OF ACTION TO ANY PERSON INJURED AS THE RESULT OF A WILLFUL VIOLATION OF THE ACT. ILL. RE

v.

STAT. 1985, CH. 48, PAR. 69.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

522 N.E.2d 881, 168 Ill. App. 3d 625, 119 Ill. Dec. 219 1988.IL.595

Appeal from the Circuit Court of Kane County; the Hon. James Quetsch, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff was seriously injured while working as a laborer at a construction site. He initially filed suit in November 1985, but the two defendants involved in this appeal, Primus Corporation (Primus) and Walter E. Deuchler Associates, Inc. (Deuchler), were not named in that suit. He filed an amended complaint in January 1986 against Primus, Deuchler, and three others, alleging violations of the Act. Both Primus and Deuchler moved for summary judgment, claiming that the Act was not applicable to the undisputed facts surrounding plaintiff's injury. The court granted their motions on February 20, 1987. Subsequently, on March 10, 1987, plaintiff filed an amendment to his complaint to add a negligence count against Primus. Primus moved to dismiss that count pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615) for failure to state a cause of action. On June 17, 1987, the court dismissed the negligence count with prejudice and entered its finding with respect to both the negligence and Structural Work Act claims that there was no just reason to delay enforcement or appeal. Plaintiff then filed this appeal. I

The first issue on appeal is whether the court properly entered summary judgment. The entry of summary judgment is appropriate where the pleadings, depositions and affidavits establish that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (See Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421.) In Structural Work Act cases, summary judgment may be appropriate "where the material facts are not in dispute and the controversy is over the proper construction of the . . . Act and whether the facts sustain a cause of action." (St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 524; accord Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 831; Page v. Corley Cos. (1985), 131 Ill. App. 3d 56, 58.) We must therefore determine whether the court correctly held the Act to be inapplicable to the undisputed facts of this case.

Primus was the general contractor for the construction of a residential complex called Boulder Hill Unit 35. Deuchler was the project engineer. Plaintiff's employer, Zwart Excavating, Inc. (Zwart), was a subcontractor hired by Primus to construct a sewer system to serve the complex. On the day plaintiff was injured, he crawled into a section of concrete sewer pipe to retrieve some rubber gaskets which had been stored there. The pipe section had not yet been installed and was lying on the ground close to the trench. While he collected the gaskets, plaintiff knelt in the pipe with his head and torso inside, but with his lower legs protruding from it. In the meantime, another Zwart employee, Richard Zwart, Sr., began to extend the existing trench by using a tractor-like excavating machine called a backhoe. The backhoe was equipped with a shovel or bucket at the end of a long mechanical arm. After removing several bucket-loads of soil, Zwart decided to reposition the machine. He backed it up without looking behind him and ran over plaintiff's left foot and ankle.

Section 1 of the Structural Work Act provides:

"[All] scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Ill. Rev. Stat. 1985, ch. 48, par. 60.)

The purpose of the Act is to protect persons involved in "extrahazardous occupations of working in and about construction, repairing, alteration or removal of buildings . . . and other structures." (Vuletich v. United States Steel Corp. 117 Ill. 2d at 422; Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill. 2d 151, 155.) While the Act should be liberally construed to effectuate that purpose (Innis v. Elmhurst Dodge, Inc., 107 Ill. 2d at 155; McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 151), it has never been interpreted to cover every construction activity (Vuletich v. United States Steel Corp., 117 Ill. 2d at 422; Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 536) or to afford a remedy for every injury resulting from the operation of machinery at a construction site. (Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 623; see also Langley v. J. L. Simmons Contracting Co. (1987), 152 Ill. App. 3d 899, 901.) Its protections should not be extended by strained or unnatural interpretations. Hall v. Canady (1986), 149 Ill. App. 3d 544, 548.

Plaintiff contends that the pipe section on which he was kneeling constituted a "support" and that the backhoe was a "mechanical contrivance" under the Act. The courts have consistently held that all of the devices named in the Act ("scaffolds, hoists, cranes . . . supports, or other mechanical contrivances") are support devices. (See, e.g., Langley v. J. L. Simmons Contracting Co., 152 Ill. App. 3d at 903; Page v. Corley Cos., 131 Ill. App. 3d at 59; Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 1129.) It is clear, however, that not everything on which a worker stands is a support. (Carlson v. Moline Board of Education (1984), 124 Ill. App. 3d 967, 972; Langley v. J. L. Simmons Contracting Corp., 152 Ill. App. 3d at 903.) The named devices' common feature has been described as "an artificial foundation bearing a load against gravity" (Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 1026), and "a temporary platform which elevates workers or materials from the permanent floor or ground level in order to perform or accommodate performance of a construction task" (Page v. Corley Cos., 131 Ill. App. 3d at 59).

In Louis v. Barenfanger (1968), 39 Ill. 2d 445, the supreme court quoted at length from a Wisconsin opinion interpreting the terms "scaffolding" and "mechanical contrivance" from a similar statute:

"'The scope thereof would reasonably include any temporary structure made up of parts . . . used for support while doing any kind of work mentioned in the law, -- any kind of an elevated platform for workmen to use in the performance of their duties. Any combination for use in doing any kind of work mentioned in the statute where the servant is dependable thereon for support, in place of an ordinary surface, such as the ground or floor, is a mechanical contrivance. The Legislature, in the combination of words, "scaffolding, hoists, stays, ladders or other mechanical contrivance," viewed in a broad remedial sense in favor of employees, left little, if anything, uncovered which may be used in the work mentioned, where required to ...


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